Audio recording 29.1 transcript

Chapter twenty-nine concerns non compensatory remedies for breach of contract. And these are much less common than those remedies we analysed in chapter twenty-seven. So compensatory damages have to be inadequate in some way for the remedies in this chapter to be awarded. And the chapter first considers monetary remedies that might be available. And begins with restitutionary damages for breach of contract. So, in Attorney-General vBlake, the claimant was able to disgorge the defendant's gains made from the breach of contract. The claimant was able to strip the defendant of the profits that he had made. But that case, Attorney-General v Blake is very, very unusual. And very much an outlier in English law. So, I think it's unlikely it would be applied again. But in any event, it's important to be able to distinguish between restitutionary damages in Blake where the cause of action is breach of contract, and restitution on the basis of a total failure of consideration, where the cause of action is unjust enrichment. And I've already mentioned that in the context of chapter five, for example, and here it's explained in more detail. And other monetary remedies, they're discussed this chapter are even less common, really. So punitive damages are not explicitly recognized for breach of contract in English law. There's suggestion from Canada that we should recognize them, but not in England yet. And nominal damages could be happily be abandoned, I think, in English law. But do show that for breach of contract, you are entitled to damages as of right. The two sort of major remedies, I think, in this chapter, which are often awarded, and do raise interesting questions, are specific performance and injunction, which are both equitable remedies. So, equity will only intervene if the common law is inadequate in some way, inadequate is a difficult issue here because you know, for what purpose are damages inadequate? We do say that you'll only award equitable relief here if damages are inadequate. And I think it's important to appreciate that these are quite intrusive remedies. Now here, the court is telling you, you must do this, or you must not do that. And Tony Reer had a very good line where he said that, when a judge grants an injunction, he swaps his wig for a helmet. So, it's not just having the normal wall of a judge in adjudicating between parties. When a court grants an injunction, the court is effectively going to battle, because if then the party does not comply with the equitable order, either for specific appointments or for an injunction, then that party will be in contempt of courts. Well, being contempt of court is a serious thing because the punishments are potentially imprisonment, or unlimited fines. So, courts are a bit hesitant to award equitable relief in the contractual context, perhaps unduly so. But it is still true that you're only likely to get specific performance, or an injunction if the subject matter of the contract is unique in some way. And a good example of that is specific performance is regularly granted in the context of sale of land, because each parcel of land is unique, but you're very, very, very unlikely to get specific performance for contract for the sale of generic goods.